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Name: People v. Wills
Case #: D050280
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/29/2008

Appellant was ineligible for probation where former child molestation victim was an adult at the time of sentencing. Wills pleaded guilty to three violations of Penal Code section 288, subdivision (a) for conduct which occurred in 1995 when the victim was 11 years old. He admitted a 1203.066 enhancement allegation as to count three, thereby rendering him presumptively ineligible for probation unless he qualified under “all” the criteria specified in the exception. One of the criteria was that the grant of probation be in the best interest of the child. The “child” victim was 22 years old at the time of the prosecution. The prosecutor argued that Wills did not meet the criteria and was therefore not eligible for probation because the victim was no longer a child, and that probation would not have benefitted the victim at the time because her mother and Wills had no continuing relationship. The trial court agreed and sentenced Wills to state prison. On appeal, Wills contended that reversal was required because the trial court failed to consider whether probation would have been in the victim’s best interest at the time of the offenses in 1995. The appellate court affirmed the sentence, finding that the plain language of the statute evinces the Legislature’s intent that a sentencing court has no authority to grant probation to a defendant where there is a true finding on a 1203.066, subdivision (a)(8) allegation where the molestation victim is no longer a child at the time of sentencing. Under section 1203.066(c)(2), a sentencing court must assess the best interest of the child based upon circumstances at the time of sentencing, not at the time of the offenses.